House arrest and the court measure of prohibition from leaving the residence – as house arrest – are two different legal institutes that are often confused and equated in the public eye.
Pretrial detention is a measure to ensure the presence of the accused. Imprisonment is a punishment imposed after the conclusion of criminal proceedings, in which a person found by the court to have committed a criminal offense is sentenced. The time spent in pretrial detention is credited toward the term of imprisonment if the accused is sentenced to imprisonment. This means that if a suspect has been in pretrial detention for three months and is subsequently sentenced to four months of imprisonment in the same proceeding, they will serve only one more month of imprisonment.
Electronic monitoring, colloquially known as ankle monitoring, is an alternative form of punishment for convicted individuals who serve their sentence at home instead of in prison. House arrest with ankle monitoring is usually imposed for offenses punishable by sanctions of up to one year, and most often, they are imposed for criminal offenses related to traffic, petty theft, and drug abuse. The average duration of sentences served under house arrest is slightly over eight months, including the measure of house detention.
The execution of this penalty is supervised by the Probation Service, which operates under the Ministry of Justice for the enforcement of criminal sanctions. Individuals sentenced in this manner are not allowed to leave their residence except in cases prescribed by the Law on the Enforcement of Criminal Sanctions. However, there are instances when leaving the residence is permitted, but solely at the discretion of the director of the Administration for the Enforcement of Criminal Sanctions. Typically, these cases involve providing necessary medical assistance to the convicted person or a family member, or for the purpose of going to work, if the criminal offense for which they were convicted is not work-related.
Wearing an ankle monitor and going to work
According to the Law on the Enforcement of Non-Custodial Measures and Sanctions (“Official Gazette of RS”, No. 55/2014 and 87/2018), convicted individuals have the possibility to continue working, even leaving the premises where they serve their sentence with the approval of the Commissioner, for the purpose of performing work duties if they are employed. Similarly, according to Article 9, Paragraph 3, Point 2 of the Regulation on the Execution of Non-Custodial Sanctions and Measures and the Organization and Operation of Commissioners (“Official Gazette of RS”, No. 30/2015), the convicted individual must submit a request through the Commissioner for permission to leave the premises where they reside, among other reasons, for going to work (if the criminal offense for which they were convicted is not work-related), along with which the convicted individual is required to provide the employer’s consent, confirmation of the convicted individual’s regular working hours, a photocopy of the work record book, or a contract of employment.
It is worth noting that in accordance with the Labor Law (“Official Gazette of RS”, No. 24/2005, 61/2005, 54/2009, 32/2013, 75/2014, 13/2017 – decision of the Constitutional Court, 113/2017, and 95/2018 – authentic interpretation – hereinafter: the Law), the employment contract of an employee sentenced to imprisonment may be suspended or terminated depending on the length of the sentence being served and the expected absence from work, namely:
The employment contract is suspended pursuant to Article 79, Paragraph 1, Point 5 of the Law, during the serving of a prison sentence or other imposed measures, educational or protective measures, for a period of up to six months, starting from the day the sentence is commenced. In this case, the employee whose rights and obligations are suspended has the right to return to work with the employer within 15 days from the day of return from serving the prison sentence or other measures – educational or protective measures. Failure to return within the specified period may lead to termination of the employment contract based on Article 179, Paragraph 1, Point 3 of the Law.
The employment contract terminates regardless of the will of the employee or the employer, in accordance with Article 176, Paragraph 1, Point 3 of the Law, if the employee is required to be absent from work for more than six months due to serving a prison sentence. In this case, the employer must ensure that on the day the employment contract terminates (the day the sentence is commenced), the employee is actually required to be absent from work for more than six months due to serving the sentence. The condition for the lawful application of Article 176, Paragraph 1, Point 3 of the Law is that at the time of commencing the sentence, the absence effectively lasts for more than 6 months, regardless of the sentence imposed. For example, if someone is sentenced to seven months in prison but has already spent two months in pretrial detention, they would be absent for another five months due to serving the sentence, and thus the employment contract could not be terminated.
Therefore, the employer is not obliged to provide consent for the employee to work during the period of serving a prison sentence in the premises where they reside, and from the perspective of the Law, the employment contract is either suspended or terminated “by operation of law,” depending on the duration of the absence from work due to the sentence being served, as previously mentioned.
At this point, I would like to emphasize how the difference between house arrest and house detention affects the employment relationship.
Pretrial detention and employment relationship
Upon placing the accused in pretrial detention, the court will, within three days of the decision, inform the relevant authority or the employer where the accused is employed ex officio. According to the labor law, an employee placed in pretrial detention is suspended from work from the first day of detention until the end of the detention period. If criminal proceedings are initiated against the employee for a criminal offense committed at work or related to work, the suspension may last until the final conclusion of the criminal proceedings.
During the temporary suspension from work, the employee is entitled to receive compensation equal to one-quarter of their basic wage, or one-third if they support a family. The compensation for the period of temporary suspension from work is paid by the authority that ordered the pretrial detention.
House arrest and the employment relationship
During the alternative sentence of house arrest, the convicted individual may, by decision of the director of the Administration, leave the premises where they reside in certain cases, one of which is going to work, but only if the criminal offense for which they were convicted is not work-related.
In order for the convicted individual to obtain permission to go to work, they must submit a written request to the director of the Administration, in the form of a petition. The petition is submitted through the Commissioner, who forwards it to the Probation Service, along with their opinion on the merits of the petition. If the petition is approved, the court and the relevant police department in the convicted individual’s place of residence will be informed.
The director of the Administration may revoke the decision to permit leaving the premises for the purpose of going to work if there are circumstances preventing the convicted individual from leaving (for example, if the company has closed, if it is during a collective annual leave, or if the individual has been terminated), if it is found that the information provided in the petition is untrue, or if the convicted individual abuses the permission to leave the premises where they serve their house arrest sentence.
Text about complaints About Police Work in Serbia you can read here.